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Circular 2004/8 - Amendment to the Public Service Regulations 1999

This circular has been replaced by the documents referred to in Circular 2005/3

Regulation 2.1-Disclosure of information

The purpose of this Circular is to advise of an amendment to the Public Service Regulations 1999 (the Regulations), concerning the disclosure of information.

2. Public Service Amendment Regulations 2004 (No. 2) puts in place provisions regulating the disclosure of information by public servants by substituting a new regulation 2.1 into the Regulations. Former regulation 2.1 had not moved in step with community expectations and public policy as reflected in, for example, the Freedom of Information Act 1982, which aims to extend as far as possible the right of the Australian community to access information in the possession of the Government. Nor had it moved in step with recent court decisions.

3. The validity of regulation 2.1 was cast doubt on by the decision in Bennett v The President, Human Rights and Equal Opportunity Commission [2003] FCA 143 (the Bennett case). New regulation 2.1 brings the law regulating disclosure of information by public servants into line with community expectations and addresses the matters raised by this case.

New regulation 2.1

Information prejudicial to the effective working of government

4. Subregulation 2.1(3) prohibits the disclosure of information by APS employees which they obtain or generate in connection with their employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

5. Depending on the circumstances, this restriction may cover information such as opinions, consultation, negotiations (including about the management of a contract), incomplete research, or advice or recommendations to the Government, leading or related to, the development or implementation of the Government's policies or programs. The legitimate interest of government in regulating access to such classes of information is recognised in the Freedom of Information Act 1982.

Information communicated in confidence

6. Subregulation 2.1(4) prohibits the disclosure of information by APS employees which they obtain or generate in connection with their employment if the information was, or is to be, communicated in confidence within the government or was received in confidence by the government from a person or persons outside the government. The prohibition applies whether or not the disclosure would found an action for breach of confidence.

7. Information will be taken to be communicated in confidence within government where an employee is given the information on the understanding that it should not be disclosed except in the course of official duties. This will be most apparent where the information is formally classified. For instance, information subject to a national security classification or a Cabinet-in-Confidence or staff-in-confidence classification is clearly communicated in confidence within government.

8. However, other circumstances may indicate that the information is given to an employee in confidence, even where it is not formally classified. For example, information may be given to an employee on the understanding that it is only to be disclosed in the course of duties or with the authorisation of the Agency Head. Alternatively, the nature and context of the information may make it clear that the information should not be disclosed except in the course of duties, for example, information which if disclosed except in the course of duties might damage Australia's relations with foreign States.

9. Information will be taken to be received in confidence by the government from a person or persons outside the government where the provision of the information is subject to an express confidentiality condition (whether in a contract or otherwise), and in other circumstances where it is clear that the information is provided on the basis that it is to be used only for the purpose for which it is provided. Again, the nature and context of the information may make it clear that the information is disclosed on a confidential basis (eg information provided by a foreign State about its likely position in a treaty negotiation or information provided by a commercial entity which would be useful to its competitors).

10. The exemptions set out in the Freedom of Information Act are a useful starting point in determining which categories of information may potentially fall within the scope of the regulation

The new regulation operates alongside other restrictions on the disclosure of information

11. The new regulation does not affect other restrictions on the disclosure of information. Such restrictions may be created by legislation, for example the Privacy Act 1988, or the common law, for example the implied common law duty of loyalty and fidelity.

12. It is intended that the regulation operate alongside any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction. Subregulation 2.1(6) makes it clear that the regulation does not limit the authority of an Agency Head to give more specific lawful and reasonable directions in relation to the disclosure of particular classes of information held by the agency.

Other provisions

13. The new regulation does not prevent a disclosure of information by an APS employee in the course of an employee's duties, or in accordance with an authorisation given by an Agency Head, or that is otherwise authorised by law.

14. A note to the regulation makes clear that under section 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate any fact or document which comes to the employee's knowledge, or into the employee's possession, by virtue of being a Commonwealth officer, and which it is the employee's duty not to disclose.

Date of effect

15. The new regulation (at Attachment A) comes into effect on 22 December 2004 which is the date of its gazettal. A consolidated version of the Regulations, including this amendment, will be available at the Attorney-General's Department Scaleplus website at http://scaleplus.law.gov.au/.

16. The amendments to the Regulations will be tabled when Parliament resumes on 8 February 2005. They are subject to Parliamentary scrutiny, which means that a notice of disallowance may be given in either House of Parliament within fifteen sitting days of tabling.

Supporting guidance

17. The APS Commission has updated the guidelines on official conduct APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and Agency Heads as a consequence of the new regulation, and to clarify the application of the regulation. In particular, there are significant changes to chapter 3 (Managing Official Information) and a small change to chapter 13 (Employees as citizens) in relation to participating in union activities. (There is another small change - not connected to the new regulation - in chapter 13, in the paragraph headed 'employees of the Australian Electoral Commission'.)

18. The amendments to the guidelines are at Attachment B, copies of which should be placed with existing stocks of the publication. The updated guidelines are also available on the APS Commission's website.

19. In December 2003 the Public Service Commissioner wrote to Agency Heads advising, among other things, that agencies should not regard regulation 2.1 as an effective part of the APS Code of Conduct, or initiate or continue inquiries into a suspected breach of the Code that relies solely on regulation 2.1. That advice is superseded to the extent that it relates to the old regulation 2.1. Other information in the advice is now covered in the updated guidelines on official conduct.

Further advice

20. Please contact the APS Commission's Employment Policy Adviceline by phone-on (02) 6202 3859, or by email at-employmentadvice [at] apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing.

David Bohn

Group Manager

Policy Group

December 2004

Attachment A

2.1 Duty not to disclose information (Act, s 13)

This regulation is made for subsection 13 (13) of the Act.

This regulation does not affect other restrictions on the disclosure of information.

An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if the information:

was, or is to be, communicated in confidence within the government; or

was received in confidence by the government from a person or persons outside the government;

whether or not the disclosure would found an action for breach of confidence.

Subregulations (3) and (4) do not prevent a disclosure of information by an APS employee:

in the course of the APS employee's duties; or

in accordance with an authorisation given by an Agency Head; or

that is otherwise authorised by law.

Subregulations (3) and (4) do not limit the authority of an Agency Head to give lawful and reasonable directions in relation to the disclosure of information.

Note Under section 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate any fact or document which comes to the employee's knowledge, or into the employee's possession, by virtue of being a Commonwealth officer, and which it is the employee's duty not to disclose.

Attachment B

APS Values and Code of Conduct in practice - Chapter 3

Connect with APSC

The Australian Public Service Commission (APSC) is a central agency within the Prime Minister and Cabinet portfolio. The Commission supports two statutory office holders: the Australian Public Service Commissioner - who is also agency head - and the Merit Protection Commissioner. Their functions are set out in sections 41(1) and 50(1), respectively, of the Public Service Act 1999.